Sunday, January 21, 2007

Irish Primate-elect calls for abolition of the Act of Settlement

He is not yet installed in his post, yet already Bishop Alan Harper, who is to succeed Dr Robin Eames as leader of the Anglican Church in Ireland, is demanding that the ban on Catholics becoming or marrying the Monarch should be abolished. He also calls for the disestablishment of the Church of England, declaring that we would ‘not only get over, but would be the better for it’.

Quite a few of Cranmer’s communicants have emailed him this story, and he has turned to their blogs to observe the ensuing discussion. Opinion invariably falls into two camps: the outdated anachronism camp, and the constitutional traditionalist camp. Whilst acknowledging the undoubted theological validity of both of these perspectives, Cranmer wishes to highlight the problems and legislative nightmare which would ensue, and thereby enlighten his communicants of the sheer practical impossibility of repealing the Act of Settlement 1701. This may be termed the politically pragmatic camp.

Our forebears made the Protestant Constitution so watertight as to be virtually impossible to undo; indeed, one clause declares that the terms of the Settlement are ‘for ever’. Repeal of this Act would demand the consequent repeal of nine further Acts, including the Bill of Rights (1688), the Coronation Oaths Act (1688), the Crown in Parliament Act (1689), the Act of Union (1707), and the Royal Marriages Act (1772). On top of this, fifteen Commonwealth countries of which the British Monarch is also Head of State would also have to enact similar legislation, committing them to months of legislative scrutiny on the implications of repeal for their own constitutions. Even with minimal opposition (and this should not be taken for granted), the parliamentary time involved over the entire British Commonwealth would be colossal. In the UK alone it has been estimated that it could dominate an entire parliamentary year – around a quarter of a government’s legislative programme.

What government is going to suspend all of its manifesto commitments on such bread-and-butter issues as health or education while it navel-gazes for a whole year on what is considered an issue of such microscopic unimportance to 99% of the British people?

Cranmer prophesies that this Act will not be repealed. Amendment, however, is an entirely different matter altogether…

13 Comments:

A most cheering post, until the very last sentence, which seems to negate what has gone before. People who, purportedly on the grounds of religious tolerance, want an end to the Protestant settlement, are simply useful idiots for the poisonous crew who are in charge of the country, who hate all religion, anything to do with the monarchy, and all our own history.

The final sentence has its foundation in the relatively new constitutional doctrine of 'implied repeal'. Parliament may, it seems, enact legislation which is at variance with constitutional statutes, without expressly repealing those aspects of the Constitution which are affected by the new legislation.

I would contend that time is not such an obstacle for this or any Government for that matter, they are after all primarily a talking shop. Look at the amount of time spent talking about chasing the foxes around the countryside, or clause 28, or the multitude of race this or hate that bills. No if it were seen to be important to the voter the politics alone would carry the amendment.

Take comfort Mr Cranmer in the apathy of the great British public, it’s not on Big Brother and it’s not to do with Iraq, taxation, honours, Muslims, gays, the environment, Bush, the republicans or Blair so it’s not discussed in parliament. Christianity in the UK today is either irrelevant or a target for derision and mockery but not to be taken seriously or respected. I suspect that Europe will make the act a total irrelevance before it is repealed. Either that or one of the Royals will marry a Roman Catholic and no one will care.

In 1885, a former Catholic priest, Charles Chiniquy, wrote a book titled Fifty Years in the Church of Rome in which he made many scandalous allegations against the Catholic Church, including the accusation that the assassination of President Abraham Lincoln in 1865 had been the result of a conspiracy by the Catholic Church, and that the assassin John Wilkes Booth was a Catholic who had been corrupted and led by the Vatican to commit the murder.

Chiniquy, who had been excommunicated by the Catholic Church in 1858, claimed that "emissaries of the Pope" had promised Booth "a crown of glory in heaven" for the killing of Lincoln. According to Chiniquy, the assassination was perpetrated by the Church in revenge for Lincoln's defence of Chiniquy in a 1856 lawsuit.

Please, The man was thrown out of the Catholic Church for seducing young girls suspended by two different bishops he was finally excommunicated. Yes I know this is an open invitation to have a pop at the recent scandals, but do try and keep to Chiniquy. His subsequent prurient diatribe of bile and vindictiveness is nothing more than the ranting of a bitter twisted imagination looking for any receptive audience gullible or credulous enough to give him the time of day or useful enough to serve there purpose.

There's really two issues here: (a) valid royal marriages;(b) establishment of the C of E.

On (a) it would be relatively simple to change the position. Simply amend the Act of Settlement (1700, actually) to say that it applies to marriages before the date the amendment comes into force. The Long title of the Act is "An Act for the further Limitation of the Crown and better securing the Rights and Liberties of the Subject" - which would be unchanged.

The Royal Marriages Act 1772 is a bit silly and could be left alone (if the Royal concerned is over 25 yrs old they can marry unless Parliament objects - would they ever, nowadays?). Probably you'd amend it to apply to living descendents of the grand-parent of the current monarch from time to time (i.e. revert to the original facts of 1772 - that George III's uncles led, ahem, unconventional lives and he wanted to rein them in).

As for (b), agreed that is trickier - but not a problem. A one-line Act could provide that at the discretion of any reigning monarch a Lord High Commissioner could be appointed to discharge the functions until further notice of the Supreme Governor (and to be read as such in all previous legislation). I would imagine that for most purposes that effectively "disestablishes" the C of E into a state not unanalogous to the Church of Scotland (but ready to statnd corrected).

To handle any practical problems you could make it a 2 line Act and provide a Henry VIII clause for the Lord High Commissioner to make regulations subject to override by Parliament/Synod or whoever.

Wouldn't address the theological/social/political issues that concern Cranmer (and I'm not saying whether it is a good or a bad idea) but it gets you from A to B. To be decided: whether the Bill to enact this change would be hybrid in nature (different, more complex, legislative process).

Must we really worry about a prelate in a breakaway part of the United Kingdom who main congregation is in The North of Ireland, and represents a tiny church caught between its desire for coitus with Rome and its affinity for same-sex relationships in ECUSA and beyond ?

Not sure whether Bishop Hill responded offline, but Lord Justice Laws said in the Metric Martyrs case that "constitutional" statutes had to be overturned explicitely, while "ordinary" statutes could be done so implicitely. He defined the difference between the two as:

“We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.”

On the subject of constitutional and ordinary legislation. The quote from LJ Laws is not very clear in my view - and many in the Judiciary disagree with him that there is a distinction at all.

Constitutional laws can I think be differentiated from other laws in that the former lay down rules for the creation or operation of laws -and of the institution, Parliament, which makes laws. Constitutional laws have no political content as such whereas "ordinary laws" refer as it were only to themselves and have political content.

It has long been the convention in the UK that constitutional laws can only be expressly repealed and not impliedly - so that Parliament and the people (the true sovereigns!)can see if their ancient liberties and protections contained in previous laws are being revoked. As Norris McWhirter and I pointed out in our 1994 book Treason at Maastricht (£11 post free Compuprint Publishing!)many critical constitutional statutes conventions and common law were overturned by the ratification of the Maastricht Treaty IMPLIEDLY and not expressly and that that legislation was therefore invalid.

In reverse however (see The British Declaration of Independence www.bdicampaign.org) all that legislation purporting to surrender our democratic sovereignty to European Institutions can easily be repealed using the same (implied) method of its inception.

About His Grace:

Archbishop Cranmer takes as his inspiration the words of Sir Humphrey Appleby: ‘It’s interesting,’ he observes, ‘that nowadays politicians want to talk about moral issues, and bishops want to talk politics.’ It is the fusion of the two in public life, and the necessity for a wider understanding of their complex symbiosis, which leads His Grace to write on these very sensitive issues.

Cranmer's Law:

"It hath been found by experience that no matter how decent, intelligent or thoughtful the reasoning of a conservative may be, as an argument with a liberal is advanced, the probability of being accused of ‘bigotry’, ‘hatred’ or ‘intolerance’ approaches 1 (100%).”

Follow His Grace on

The cost of His Grace's conviction:

His Grace's bottom line:

Freedom of speech must be tolerated, and everyone living in the United Kingdom must accept that they may be insulted about their own beliefs, or indeed be offended, and that is something which they must simply endure, not least because some suffer fates far worse. Comments on articles are therefore unmoderated, but do not necessarily reflect the views of Cranmer. Comments that are off-topic, gratuitously offensive, libelous, or otherwise irritating, may be summarily deleted. However, the fact that particular comments remain on any thread does not constitute their endorsement by Cranmer; it may simply be that he considers them to be intelligent and erudite contributions to religio-political discourse...or not.

The Anglican Communion has no peculiar thought, practice, creed or confession of its own. It has only the Catholic Faith of the ancient Catholic Church, as preserved in the Catholic Creeds and maintained in the Catholic and Apostolic constitution of Christ's Church from the beginning.Dr Geoffrey Fisher, Archbishop of Canterbury, 1945-1961

British Conservatism's greatest:

The epithet of 'great' can be applied only to those who were defining leaders who successfully articulated and embodied the Conservatism of their age. They combined in their personal styles, priorities and policies, as Edmund Burke would say, 'a disposition to preserve' with an 'ability to improve'.

I am in politics because of the conflict between good and evil, and I believe that in the end good will triumph.Margaret Thatcher, Baroness Thatcher LG, OM, PC, FRS.(Prime Minister 1979-1990)

We have not overthrown the divine right of kings to fall down for the divine right of experts.Harold Macmillan, 1st Earl of Stockton, OM, PC.(Prime Minister 1957-1963)

Socialism is a philosophy of failure, the creed of ignorance, and the gospel of envy, its inherent virtue is the equal sharing of misery.Sir Winston Churchill, KG, OM, CH, TD, FRS, PC (Can).(Prime Minister 1940-1945, 1951-1955)

I am not struck so much by the diversity of testimony as by the many-sidedness of truth.Stanley Baldwin, 1st Earl Baldwin of Bewdley, KG, PC.(Prime Minister 1923-1924, 1924-1929, 1935-1937)

If you believe the doctors, nothing is wholesome; if you believe the theologians, nothing is innocent; if you believe the military, nothing is safe.Robert Cecil, 3rd Marquess of Salisbury, KG, GCVO, PC.(Prime Minister 1885-1886, 1886-1892, 1895-1902)

I am a Conservative to preserve all that is good in our constitution, a Radical to remove all that is bad. I seek to preserve property and to respect order, and I equally decry the appeal to the passions of the many or the prejudices of the few.Benjamin Disraeli KG, PC, FRS, Earl of Beaconsfield.(Prime Minister 1868, 1874-1880)

Public opinion is a compound of folly, weakness, prejudice, wrong feeling, right feeling, obstinacy, and newspaper paragraphs.Sir Robert Peel, Bt.(Prime Minister 1834-1835, 1841-1846)

I consider the right of election as a public trust, granted not for the benefit of the individual, but for the public good.Robert Jenkinson, 2nd Earl of Liverpool.(Prime Minister 1812-1827)

Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.The Rt Hon. William Pitt, the Younger.(Prime Minister 1783-1801, 1804-1806)